| Matter of Marchand v Nazzaro |
| 2008 NY Slip Op 07810 [55 AD3d 968] |
| October 16, 2008 |
| Appellate Division, Third Department |
| In the Matter of Jennifer J. Marchand, Individually and on Behalf ofHailey A. Marchand-Nazzaro et al., Respondent, v Frank A. Nazzaro,Appellant. |
—[*1] Andrew Kossover, Public Defender, Kingston (Mari Ann Connolly Sennett of counsel), forrespondent. Marian B. Cocose, Law Guardian, Bearsville.
Lahtinen, J. Appeal from an order of the Family Court of Ulster County (McGinty, J.), enteredMarch 20, 2007, which, among other things, granted petitioner's application, in two proceedingspursuant to Family Ct Act article 8, for an order of protection.
Petitioner and respondent began cohabitating in the mid-1990s and are the parents of twodaughters (born in 1997 and 1999). The relationship deteriorated leading to incidents of domesticviolence and, in 2006, each party filed, among other proceedings, separate petitions alleging sundryfamily offenses by the other party. Family Court issued a temporary order of protection restrainingrespondent from contact with petitioner and the children, and he allegedly violated that order resulting infurther proceedings against him. After several days of testimony on the various pending petitions, FamilyCourt sustained the family offense petitions against both parties and the violation petition againstrespondent. Both parties underwent mental health evaluations. The dispositional order as to petitionerrequired her to obtain alcohol abuse treatment. At the dispositional hearing regarding respondent, theevidence included testimony from respondent and two experts (a psychologist and a psychiatrist) whohad examined him. [*2]After the hearing, Family Court issued an orderof disposition that incorporated the terms of a one-year order of protection precluding contact with thechildren and further directed that respondent could seek modification of visitation once he had eithercommenced mental health treatment or arranged for therapeutic visitation. Respondent appeals.
Initially, we note that the order of protection that was incorporated into the dispositional orderexpired by its own terms in March 2008. There is no indication that it was extended. Accordingly,respondent's challenge to the terms of the order of protection is now moot (see Matter of Schreiber v Schreiber, 2AD3d 1094, 1095 [2003]; Matter of Dean v Dean, 208 AD2d 1030, 1031 [1994]).
Respondent further argues that Family Court erred by making an application for modification ofvisitation contingent upon him seeking mental health treatment. "It is well settled that although a courtmay direct a party . . . to seek counseling as a component of the court's custody orvisitation order, Family Court does not have the authority to order that a party undergo counseling ortherapy before visitation will be allowed" (Matter of Dennison v Short, 229 AD2d 676, 677[1996] [internal quotation marks and citations omitted]; see Matter of Remillard v Luck, 2 AD3d 1179, 1180 [2003]; Matterof Thaxton v Morro, 222 AD2d 955, 958 [1995]). Here, however, access to the children was notpremised solely upon commencing treatment since Family Court also set forth the option of therapeuticvisitation. Moreover, after reviewing the evidence in the record and according deference to FamilyCourt's credibility determinations as it had the advantage of viewing the witnesses, we are unpersuadedthat Family Court abused its discretion (seeMatter of Roe v Roe, 33 AD3d 1152, 1155 [2006]). The acts of domestic violence togetherwith the detailed reports and the testimony of the two mental health experts provided a sound andsubstantial basis to support Family Court's order (see Matter of Sanders v Slater, 53 AD3d 716, 717-718 [2008]; Matter of Taylor v Fry, 47 AD3d1130, 1131 [2008]; Matter of Maliha vMaliha, 13 AD3d 1032, 1033 [2004]).
Spain, J.P., Kane, Malone Jr. and Stein, JJ., concur. Ordered that the order is affirmed, withoutcosts.